Linder v. State
| Decision Date | 13 August 2013 |
| Docket Number | No. WD 75069.,WD 75069. |
| Parties | Georgia LINDER, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
404 S.W.3d 926
Georgia LINDER, Appellant,
v.
STATE of Missouri, Respondent.
No. WD 75069.
Missouri Court of Appeals,
Western District.
Aug. 13, 2013.
[404 S.W.3d 927]
S. Kate Webber, Kansas City, MO, for appellant.
Shaun Mackelprang, Jefferson City, MO, for respondent.
Before Division Two: THOMAS H. NEWTON, Presiding Judge, KAREN KING MITCHELL, Judge and GARY D. WITT, Judge.
GARY D. WITT, Judge.
Georgia Linder (“Linder”) appeals the denial of her Rule 24.0351 motion. She does not allege that the motion court erred in denying the claim asserted in her amended Rule 24.035 motion. Instead, she asserts that the motion court clearly erred in denying her claim without sua sponte inquiring into the performance of her appointed
[404 S.W.3d 928]
post-conviction counsel because the record shows abandonment in that counsel's amended motion was facially and patently defective. We affirm.
The State charged Linder with three counts of the class C felony of forgery (section 570.090.1(3)).2 Pursuant to a plea agreement, on January 26, 2011, Linder entered a guilty plea to the three counts of felony forgery. Under that agreement, the State agreed not to file any additional charges arising from the actions contained within the discovery provided in the case, which amounted to approximately thirty additional potential forgery charges. The agreement, however, did not prohibit the State from proceeding to prosecute Linder on other pending charges arising from an incident on January 15, 2011, in which Linder was arrested for driving with a revoked license, a class D felony, and driving while intoxicated, a class B misdemeanor.
On March 14, 2011, Linder, without a plea agreement, entered a guilty plea to these two additional counts and was sentenced for all five counts which composed the three counts of felony forgery and the felony driving while revoked and the misdemeanor driving while intoxicated charges. Linder received six-year sentences on each of the three counts of forgery, with counts I and II to run consecutively and count III running concurrently, for a combined total of twelve years. Additionally, Linder received a three-year sentence for felony driving with a revoked license and a six-month sentence in the county jail for the misdemeanor charge of driving while intoxicated. Linder was delivered to the Department of Corrections on March 22, 2011. No direct appeal of her criminal convictions was filed.
On April 15, 2011, Linder filed a timely Motion to Vacate, Set Aside or Correct Judgment and Sentence pursuant to Rule 24.035. In her timely pro se motion she raised approximately twenty-three claims.3 On April 22, 2011, the Court appointed the State Public Defender's Office to represent Linder on her post-conviction motion. On September 29, 2011, counsel for Linder filed an amended motion for post-conviction relief and a request for an evidentiary hearing. In her amended motion, Linder alleged that her pleas were not entered knowingly, intelligently, and voluntarily because her plea counsel had coerced her into accepting a plea agreement and entering a guilty plea. In relevant part, Linder's motion stated:
Movant will rely on the underlying criminal file and transcript in Buchanan County case numbers [10BU and 11 BU] as well as any exhibits filed previously or hereafter in this PCR case number. In addition, movant will rely on the following facts, evidence and witnesses listed in Movant's original Motion to Vacate, set aside or correct the Judgment or Sentence.4
Linder's amended motion failed to allege any facts, evidence or witnesses establishing coercion; therefore, the motion court reviewed the relevant portions of testimony from her plea and sentencing hearings to assess the ineffective assistance of counsel
[404 S.W.3d 929]
claim. A review of the transcripts revealed that Linder testified repeatedly in both plea hearings that there had been no threats against her or promises made to her in exchange for her plea of guilty, that she was satisfied with her plea counsel, and that there was nothing more she wanted counsel to do before she entered the guilty pleas.
Because of the lack of evidence and facts in the amended motion, the motion court found that Linder's conclusory allegations of coercion, which were not supported in the hearing...
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Briggs v. State
...relief is limited to a determination of whether the motion court's findings and conclusions are clearly erroneous. See Linder v. State, 404 S.W.3d 926, 930 (Mo.App.2013) ; Rule 29.15(k). Because the issue of abandonment by post-conviction counsel was never raised before the circuit court, n......
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Briggs v. State
...relief is limited to a determination of whether the motion court's findings and conclusions are clearly erroneous. See Linder v. State, 404 S.W.3d 926, 930 (Mo.App.2013) ; Rule 29.15(k). Because the issue of abandonment by post-conviction counsel was never raised before the circuit court, n......
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Scott v. State
...Thus, as in other such cases, we treat decisions regarding one of these Rules as applicable to both. See id.; Linder v. State, 404 S.W.3d 926, 929 n.5 (Mo.App.2013).5 To the extent that Scott suggests that the late filing of counsel's statement raised a presumption of abandonment, we disagr......